TIME SERVED: THE IMPACT OF SENTENCING AND PAROLE DECISIONS
ON THE PRISON POPULATION
Paper delivered to Irish Penal Reform Trust, Morrison Hotel, Dublin, June 28, 2010
Tom O’Malley
Until recently, Ireland’s prison population and its rate of imprisonment were quite modest
by international standards. According to the World Prison Population List maintained by
King’s College London, Ireland had an imprisonment rate of 85 per 100,000 of the
general population in June 2009. Most other European countries, outside of Scandinavia
and Switzerland, had significantly higher rates. England and Wales had an imprisonment
rate of 124 while the figures for Scotland and Northern Ireland were 149 and 79
respectively. However, the past two years have witnessed a very significant increase in
the Irish prison population. In 2008, that population was somewhere in the region of
3,600. By May of 2010, it had increased to 4,200, approximately 94 per 100,000 of the
population. Assuming this figure eventually reflects the average daily population for
2010, it will represent an increase of 600 (17 per cent) over a two-year period. It is also
worth noting that our prison population has more than doubled over the 20-year period
since 1990. This is obviously a cause of concern because of the risk of serious
overcrowding in prison institutions some of which are now operating greatly in excess of
capacity. It also raises important questions, which this paper attempts to address, about
the use of imprisonment by the courts, the length of sentences being imposed and the
adequacy of the present parole system.
Prison statistics, whether viewed in a purely domestic or in a broader international
context, must always be approached with some caution. Overall figures may include
remand prisoners and persons held under immigration control laws as well as sentenced
prisoners. Close attention must also be paid to the prevailing law on juvenile detention as
detainees below a certain age may or may not be classified as prisoners. Official prison
statistics in Ireland include St Patrick’s Institution for young male offenders as well as the
adult prisons. Remand prisoners, usually accounting for about 20 per cent of the total,1
are also included as are persons held under immigration control laws, though the numbers
in that last category are generally very low (e.g. 21 in December 2008). Our present
concern is with the sentenced prisoner population which, in Ireland, stood at 2,900 in
2008 though it now appears to have increased to about 3,500. These figures relate to
persons in custody. Account must also be taken of the number of prisoners on temporary
release which is currently in the region of 1,000
The sentenced prison population is determined by three primary factors: the number of
convicted offenders committed to prison by the courts, the length of time for which they
1
In fact, it was suggested during the discussion following this paper that the current remand
population may be as high as 30 per cent of the total prison population.
are committed and, importantly, the length of time for which they are detained.2 The lastmentioned factor is often overlooked. The impact of long sentences imposed by the
courts can be significantly lessened by a parole system which allows for the release of
prisoners once they have served a defined portion of their sentence. Prior to the
introduction of the federal sentencing guidelines in the United States, for example,
prisoners could apply to the Parole Commission for release as soon as they had served
one-third of their sentence and they routinely succeeded.3 With the introduction of the
guidelines in 1987, parole was entirely abolished within the federal system with the result
that prisoners now serve the entirety of their judicially-imposed sentences, although they
can earn remission of up to 54 days a year for good behaviour. Beyond that, their only
remaining hope is presidential clemency which is rarely exercised. Unsurprisingly, the
federal prison population has increased from 59,000 in 1990 to 211,000 today. Several
factors, including the expanding remit of federal criminal jurisdiction and increased
sentence length, have contributed to this increase but the abolition of parole is
undoubtedly another. By contrast, in England and Wales, as briefly discussed towards the
end of this paper, so-called good time remission has disappeared, but the parole system
has expanded considerably with automatic, though conditional, release granted to many
prisoners once they have served half of their sentence.
THE SENTENCED PRISONER POPULATION IN IRELAND
The statistics contained in this section are based on the Irish Prison Service annual report
for 2008, the most recent available. While overall numbers have increased in the
meantime by 600 or so, the broader patterns in terms of sentence length and the offences
of conviction are probably much the same. On December 5, 2008 there were 2,944
sentenced prisoners in custody. A significant proportion of these, exactly 40 per cent,
were long-term prisoners, meaning for present purposes those serving sentences of five
years or longer, including life sentences. A further 31 per cent were serving sentences
ranging from two to five years. Short sentences, although they have attracted a good deal
of attention, probably do not add very significantly to the overall prison population. For
instance, on December 5, 2008, there were only 50 offenders serving prison sentences of
three months or less, representing 1.3 per cent of the prison population. This, however,
should not be treated as a ground for complacency. The number of short prison sentences
imposed by the courts is unacceptably high, and the number of short-term prisoners in
custody is probably explained by the grant of early release. Short sentences involve
considerable administrative costs and may also have avoidable detrimental consequences
for those on whom they are imposed, especially at a time of prison overcrowding. Long
sentences, however, account for most of the prison population at any given time. In
December 2008, for example, persons serving sentences for homicide, drug offences and
sex offences accounted for 40 per cent of the prison population. Equally striking was the
2
Blumstein et al (eds), Research on Sentencing: The Search for Reform (National Academy Press,
Washington DC, 1983), p. 225.
3
United States v Grayson 438 U.S. 41, 47 (1978); Mistretta v United States 488 U.S. 361, 367
(1989); United States Sentencing Commission, Guidelines Manual §1A3 (1987); Barber v Thomas 560
U.S. – (June 7, 2010).
fact that those included in the category of “offences against property without violence”
(n=749) accounted for 25 per cent of the sentenced prisoners in custody at that time. This
is surely an area of sentencing policy that is ripe for review, particularly as many of those
in the last mentioned category (155 of them to be exact) were serving sentences of five
years or longer.
A PROPOSED BLUEPRINT FOR REFORM
I would suggest that, in order to halt the seeming inexorable growth of the prison
population, four issues must be addressed. Since I want to concentrate here on the fourth
of these, namely the development of the parole system, I will address the first three only
very briefly, though there is obviously much more to be said about all of them.
1)
District Court sentencing
The vast majority of short sentences are imposed by the District Court. Precisely how
many offenders actually go to prison as a result of District Court decisions is rather
difficult to estimate, because all those sentenced to imprisonment by that court have an
automatic right of the appeal to the Circuit Court and are entitled to a stay on the on the
order pending appeal. According to the Courts Service Annual Report, the District Court
sentenced almost 12,000 defendants to imprisonment or detention in 2008 although the
figures do not differentiate between immediate and suspended sentences, nor do they
indicate the terms actually imposed. Overall, however, there were 8,000 committals
under sentence to Irish prisons in 2008, an increase of almost 25 per cent on the previous
year, which means that a very considerable number of offenders sentenced in the District
Court actually went to prison. The number of persons sentenced in the higher criminal
courts would come nowhere near the overall committal figure. One major problem with
District Court sentencing is that there is no general consensus, let alone any formal
guideline, on custody thresholds. Judges of that court seem to vary enormously in their
assessment of the circumstances in which custodial sentences are warranted, particularly
for public order, minor assault, and theft offences. Add to this the lack of any settled
policy on the use of short sentences generally and the result is that, in all probability,
many offenders are needlessly being sent to prison. It is well accepted internationally that
short prison sentences serve few, if any, useful purposes. In the case of recidivist petty
offending, they may provide a temporary respite for the community, but that is about all.
Needless to say, any plan of action to curtail the use of short prison sentences would have
to include increased provision for non-custodial sentences, but that would be well worth
while and probably more cost effective.
2)
Sentences imposed in the higher criminal courts
When dealing with District Court sentencing, the question is often whether the offender
should go to prison at all. When it comes to the higher courts, however, the question is
often not so much if a prison sentence should be imposed, but rather how long the
sentence should be. This, admittedly, is a rather intractable problem, particularly in the
absence of formal guidelines. However, the essence of proportionality, which is the
dominant distributive principle of sentencing in this jurisdiction, is that a punishment or
other restriction on an otherwise protected right (such as liberty) should be no greater that
is warranted by the particular circumstances. It follows, therefore, that it a court is
intuitively minded to impose, say, a nine-year sentence on a particular offender, it should
first pause and ask if the same purpose (whatever that might be) cannot be achieved
through a seven-year, eight-year or eight-and-a-half-year sentence. The increasing
number of cases coming before the courts in which long sentences are imposed (and more
often than not, warranted) makes it imperative that courts should have regard to the
principle of parsimony as an essential ingredient of proportionality. Obviously, a more
sustained effort by appeal courts, and the Court of Criminal Appeal in particular, to
develop more specific sentencing guidelines (though not, of course, American-style
guidelines) would be of considerable help in this regard. It is only when we have a better
idea of the sentences that are considered appropriate for different offences and offence
situations that we can embark on an informed debate on the appropriate benchmarks for
the sentencing of serious offences.
3)
Mandatory sentencing
Mandatory prison sentences, whether we are talking about absolute mandatory penalties
such as the life sentence for murder, mandatory minimums such as those now in force for
certain repeat drug offences or presumptive minimums such as those applicable to firsttime s. 15A drugs offenders (having for sale or supply controlled drugs with a street value
of €13,000 or more), certain ratchet up the prison population very considerably. This is
especially true when, as in the case of the sentencing regime for illegal drug supply in
this country, the mandatory and presumptive minimums are (a) very long by international
standards, and (b) foreclose the possibility of early release except for very short periods
and for very limited purposes. It is small wonder that of the 567 prisoners serving
sentences for drug offences on December 5, 2010, 312 (55 per cent) were serving of five
years or longer. In fact 92 (16 per cent) were serving sentences of ten years or more.
There are, of course, many other problems with the s. 15A regime which cannot be
addressed here, such as the fact that Ireland appears to be the only country where it is the
estimated street value of the drug, as opposed to the amount, which triggers eligibility for
the mandatory or presumptive minimum sentence. An offender’s degree of involvement
in the overall enterprise, rather than the street value of the drugs, should be the dominant
consideration. Similar sentencing arrangements now exist for the sentencing of certain
firearms offences under the Criminal Justice Act 2006. Any efforts to introduce
additional mandatory minimum sentences should strenuously be resisted, mainly because
they are almost invariably unjust and ineffective, but also because they do contribute
significantly to prison populations and, in the present climate, to prison overcrowding.
4)
Parole
Early release of sentenced prisoners is always difficult to justify in theoretical terms. If a
particular sentence is judicially chosen in order to give effect to a policy of just deserts,
deterrence or incapacitation, it should in principle be served in its totality as the
underlying policy is otherwise in danger of being frustrated. Early release is much more
easily reconciled with a policy of rehabilitation. If the sentence was originally imposed
with a view to providing the offender with a rehabilitative opportunity, it might
legitimately be ended prematurely if there is evidence that he or she is sufficiently
rehabilitated to be released back into the community. Courts rarely tie themselves to any
one moral justification for punishment, unless compelled to do so by legislation. Irish
courts generally regard all of the conventional justifications, just deserts, deterrence,
rehabilitation and incapacitation, as legitimate considerations. The weight to be attributed
to any one of them will depend on the nature and circumstances of the case. However,
proportionality is the dominant distributive principle of punishment in Ireland. Again,
this is not readily reconcilable with early release from prison. If a trial judge or an appeal
court decides that, say, five years’ imprisonment is a proportionate sentence taking
account of all relevant factors, it seems contradictory to suggest that the executive branch
of government or some agency under its control should later decide that the person
should, after all, serve no more than three years.
Having said this, however, early release in all its forms is guided by considerations of
pragmatism rather than principle. There are certain practical reasons, which range from
providing prisoners with an incentive to observe prison discipline or undergo training or
treatment to relieving prison overcrowding, why there should be some facility to release
prisoners before they have served their full sentence. This has been true for a long time,
and there is scarcely any Western jurisdiction which does not have some such facility.
At present, those serving determine prison sentences are entitled to one-quarter
remission, with the possibility of one-third in some circumstances.4 This known as
standard remission and it is available as a matter of right unless lost through bad
behaviour while in prison. In addition, the Constitution (Art. 13.6) confers upon the
government the power to commute or remit any sentence. Commutation of sentence
involves changing it from one form to another. Remission, in the constitutional sense, is
something entirely different from the standard remission available under the prison rules.
First of all, the Constitution and its associated statutory provisions deal with the
remission of any punishment, and not just any custodial punishment. In fact, it has been
applied far more often to fines than to imprisonment. To remit punishment in the
constitutional sense means to reduce it without changing its character and bring it to an
end. Thus, if the Minister for Justice decides to remit a fine, it means that he either
excuses the offender from paying any of the fine or from paying a certain portion of it.
Likewise, if a prison sentence is remitted in this sense, it means that the prisoner is
4
A more detailed account of early release provisions in Ireland is provided by O’Malley, “Ireland”
in Padfield, van zyl Smit and Dunkel (eds), Release from Prison; European Policy and Practice (Willan
Publishing, Cullompton, 2010), Chap. 10.
released and the sentence brought to an end. While capital punishment for murder existed
in this country, it was not unusual for a death penalty to be commuted first to life
imprisonment and then, some time, late for the life sentence to be remitted to the time
served.
In the late 1950s, while the Bill leading to the Criminal Justice Act 1960 was being
prepared, a number of requests were made to the Minister for Justice from prisoners
seeking short periods of release to visit seriously ill relatives or to attend family funerals.
These were granted and it appears that they were duly honoured by the prisoners in
question who returned to prison at the end of the designated periods. The Minister was
advised, however, that although he had a statutory power to grant remission, the prisoners
who received it were under no legal obligation to return to prison because remission
technically brought their sentence to an end.5 It was therefore decided to make provision
in the Criminal Justice Act 1960 for the grant of temporary release to prisoners and that is
essentially the system that continues today, although the criteria and conditions for the
grant of release have been further specified in the Criminal Justice (Temporary Release
of Prisoners) Act 2003. It was only in 1967 that a similar provision was made in England
and Wales but there a formal parole system was introduced.
Ireland still does not have a statutory parole system and the informal scheme that
currently exists is defective in many ways. In 1989, a Sentence Review Group was set up
to advise the Minister for Justice on the possible release of persons serving long
sentences, defined as sentences of seven years or more. This was replaced in 2001 by the
present Parole Board which was established on an administrative basis. Again, however,
the Parole Board operates in a purely advisory capacity and, more importantly, is
confined to reviewing long sentences, namely those serving eight years or more. A
person serving a sentence of eight to 14 years is eligible to have his or her sentence
reviewed after serving half the term of the sentence. Those serving fourteen years or
more, including life, may have their sentence reviewed after serving seven years. This is
a very restrictive arrangement. There is no reason why parole review should not be
available to prisoners serving much shorter terms than eight years. At present, many such
people are released before the termination of their sentence, but this is effected by way of
a ministerial order of temporary release.
In England and Wales, parole is now governed by several statutes but principally the
Criminal Justice Act 1991 and the Criminal Justice Act 2003. In short, those serving
determine sentences of 12 months or more (apart from extended sentences imposed
mainly for sex offences and violent offences) are automatically entitled to release after
serving half their sentence and they remain on licence for the remainder of the sentence
period. In New Zealand, under the Parole Act 2002 prisoners serving a sentence under 2
years are released automatically at half-time. Those serving longer sentences are eligible
for parole after serving one-third of their sentence.6
5
See statement of Minister for Justice (Mr Traynor), 52 Seanad Debates 1999 (July 13, 1960).
For an excellent account of analysis of parole systems generally, see A New Parole System for
England and Wales, published by JUSTICE, London, 2009, and available on its website,
www.justice.org.uk
6
Furthermore, it is questionable, to say the least, if the operation of the present parole
system complies with present-day constitutional and international human rights norms.
The sole function of a parole authority should be to decide whether a serving prisoner can
safely be released back into the community. In the Chairman’s Foreword to the Annual
Report of the Parole Board 2007, we find the following:
“In coming to its decision as to what it will recommend to the Minister,
the Board takes into consideration many issues. First and foremost there is the
gravity of the crime and the circumstances under which it is committed.
Then there is the prisoner’s attitude to that crime. Is remorse shown? Is
acknowledgment of wrongdoing shown or do circumstances exist that would
satisfy the Board that the prisoner no longer represents a threat to the public if
granted temporary release?
A further issue must be the public abhorrence of the general public of the crime
that was committed and the sufficient part of the prisoner’s sentence which must
be served in custody to allay this.”
Arguably, only one of these factors is properly within the jurisdiction of a non-judicial
parole authority and that is whether the prisoner any longer represents a threat to the
public. Assessment of the gravity of the crime and the circumstances in which it is
committed as well as “public abhorrence” (whatever that may mean and however it is to
be assessed) are quintessentially matters for the sentencing judge to decide. The most
detailed and respected analysis of parole practice in these islands was carried out by the
Carlisle Committee in England and Wales which reported in 19887 and one of its
strongest recommendations was that the parole board should concentrate exclusively on
the risk of a prisoner committing a serious offence if released. It was adamant that the
parole board should not engage in “resentencing” by considering the seriousness of the
offence and aggravating circumstances. This was a criticism that had been made by
leading experts such as Ashworth and Hood of the English parole system as it operated
until then.8 If a parole authority is entitled to have regard to factors aggravating the
offence, this may lead to the person being doubly punished. Those factors will already
have been taken into account by the trial court in deciding on the length of sentence. If
taken into account again by the parole board the prisoner is essentially paying twice over
for the same behaviour.
It is well established in Irish case law that temporary release is a privilege and not a right,
although it is equally well established that the revocation of release must be determined
in accordance with the tenets of constitutional justice. However, the grant of parole, early
7
Carlisle, The Parole System in England and Wales: Report of the Review Committee (London,
HMSO, 1988). See also Cavadino and Dignan, The Penal System: An Introduction 4th edition (Sage.
London, 2007), Chap. 8.
8
Ashworth, Sentencing and Penal Policy (London, 1983); Hood, “Tolerance and the Tariff” in
Baldwin and Bottomley (eds), Criminal Justice: Selected Readings (London, 1978).
release or temporary release (however it may be characterized) involves a vital interest in
personal liberty which is strongly protected by the Constitution and by the European
Convention on Human Rights. In Weeks v United Kingdom,9 the European Court of
Human Rights said of Article 5 of the Convention:
“Article 5 (art. 5) applies to "everyone". All persons, whether at liberty or in
detention, are entitled to the protection of Article 5 (art. 5), that is to say, not to be
deprived, or to continue to be deprived, of their liberty save in accordance with
the conditions specified in paragraph 1 (art. 5-1) and, when arrested or detained,
to receive the benefit of the various safeguards provided by paragraphs 2 to 5 (art.
5-2, art. 5-3, art. 5-4, art. 5-5) so far as applicable.”
Parole decisions need not be made by a court, as in some European Countries such as
France, but they should be made by a “court-like” body.10 A parole authority must be an
independent and impartial tribunal. Independence and impartiality require not only the
exercise of these qualities on a subjective level by those who function on the board in
question but also a structure which is designed to guarantee those qualities as far as
possible. In R (Brooke) v Parole Board11 the English Court of Appeal held that the
English Parole Board as then appointed and organised did not have sufficient actual and
apparent independence. It held, first of all, that the appointment process for lay members
of the board should be transparent and that there should also be transparency in the
stipulation of the qualities to be looked for in candidates. It also emphasised the need for
security of tenure, in the sense that members of the board should not be removable at the
will of the sponsoring government minister. The court said:
“When members of the Board are making a decision (whether to release or refuse
release) which may prove to be unpopular, either immediately or more often with
hindsight later, their ability to make it strictly on the merits is considerably
enhanced if they know that they have security in their position. It is thus essential
in the public interest that they should have that confidence”
Security of tenure for this purpose does not mean life tenure but rather that members
should be removable for prescribed reasons only and the decision to remove should be
taken by an independent authority. Admittedly, the English Parole Board has now got the
power to decide on the release of prisoners rather than make a recommendation to the
relevant Minister, and the Brooke decision must be made in this light. But it is, of course,
interesting that it was deemed appropriate to make the Parole Board a decision-making
rather than a purely advisory authority in light of decisions of the European Court of
Human Rights and the English courts.
9
(1987) 10 EHRR 293, para. 40.
On the parole systems operating in various European countries, see Padfield, van Zyl Smit and
Dunkel, Release from Prison: European Policy and Practice (Willan Publishing, Cullompton, Devon,
2009).
11
[2008] 1 W.L.R. 1950.
10
It also follows that if a parole authority’s primary, if not sole, function is to decide if a
prisoner is suitable for release in the sense that he will not commit a serious offence
during the parole period, the membership of the Board should include the requisite
expertise, particularly in the area of risk of assessment. Members should therefore include
at least one psychiatrist, one psychologist and one criminologist. According to the
Department of Justice website, the present Parole Board has a chairperson who is a
solicitor, one psychiatrist, one representative from each of the Department of Justice, the
Prison Service and the Probation Service, and six others described as community
members. Contrast this with the English Parole Board which, in 2007, had 168 members
consisting of 47 judges, 21 psychiatrists, 8 psychologists, 4 criminologists, 11 probation
officers and 73 independent members. Independent members are not permitted to
participate in oral hearings until they have spend two years working on “paper hearings”.
Review of parole system
In short, we need a thorough review and reform of our parole system. The first stage of
this review must concentrate on the purpose of parole and its relationship to the
sentencing process. A number of models suggest themselves.
1)
2)
3)
Having automatic parole with some supervision for all or most offenders
serving determinate sentences.
Having a non-parole period specified by the sentencing court
Having all prisoners serving more than, say, two years eligible for parole after
serving a defined portion of their sentence.
The last mentioned option is probably the least desirable as it would impose an enormous
workload on the parole board but either of the first two is well worth considering. At the
outset however we need a review body similar to the Carlisle Committee to undertake a
thorough review of parole and to formulate recommendations.